54 N.Y.2d 89 | NY | 1981
OPINION OF THE COURT
Records of a disciplinary proceeding conducted pursuant to section 230 of the Public Health Law consisting of patients’ records and interviews with patients and with other doctors obtained during investigation of professional misconduct are confidential under the provisions of section 230 and, therefore, exempt from public access by section 87 (subd 2, par [a]) of the Public Officers Law. The order of the Appellate Division should, therefore, be affirmed, with costs.
Petitioner is a doctor who is under investigation by the State Board of Professional Medical Conduct (see Public Health Law, § 230). The notice of hearing and statement of charges, was served on petitioner in July, 1977. During an adjournment of the hearing on those charges, petitioner’s attorney issued subpoenas for the production of certain records and the oral examination of various persons. On the commissioner’s motion to quash the subpoenas the Appellate Division affirmed so much of Special Term’s order as held that an attorney’s subpoenas could not be issued in such a proceeding and reversed so much as directed the presiding officer of the board’s hearing committee or the commissioner to issue the subpoenas, holding that the subpoena power granted by the Public Health Law did not
Petitioner then requested access pursuant to the Freedom of Information Law (Public Officers Law, art 6) to medical records, patient interviews and interviews with other doctors obtained by the commissioner during the investigation. After denial of the request by the agency’s records access officer and records access appeals officer, petitioner brought an article 78 proceeding to review their rulings. In an unreported decision Special Term dismissed the petition, holding the material not discoverable under CPLR 3101 and exempt as part of the investigatory file and under common-law governmental privilege. Petitioner appealed, but the Freedom of Information Law having been substantially revised and liberalized by the repeal of the prior law and enactment of chapter 933 of the Laws of 1977, effective within a few weeks after the Special Term decision, permitted that appeal to be dismissed for failure to prosecute, and instituted a new and separate demand for access under the new law.
The new demand sought essentially the same materials: statements by and notes of interviews with designated patients, statements given the investigating committee by named doctors, and medical records of the same patients received by the committee. The records access officer denied the request on the grounds that, under paragraphs (a), (b), (e), and (g) of subdivision 2 of section 87, the material was exempt from disclosure by section 230 of the Public Health Law and CPLR article 31, that its disclosure would constitute an unwarranted invasion of the privacy of the patients, and that it was compiled for law enforcement and was interagency or intraagency material of the type exempted by the statute. After affirmance by the records access appeals officer, petitioner sought an opinion from the executive director of the Committee on Public Access to Records (see Public Officers Law, § 89, subd 1, par [b], cl ii) and having received an opinion partially in his favor, then commenced a new article 78 proceeding to review the denial. Respondents (the commissioner, the regional health director, the records access officer,
The commissioner’s invocation of res judicata is without basis. It is, of course, true that if both requests are viewed as being a single proceeding, the dismissal for failure to prosecute of petitioner’s first appeal would bar him from now seeking review of the same issues (see Bray v Cox, 38 NY2d 350 [dismissal for failure to prosecute interlocutory appeal on choice-of-law issue precluded its consideration on appeal after final judgment]). However, petitioner’s first request for information was made under the 1974 version of the Freedom of Information Law. The 1977 act materially changed the parties’ rights in that it accorded to the agency the discretion to provide access to sensitive information rather than excluding it entirely (compare Public Officers Law, § 87, subd 2, with former § 88, subd 6, as enacted by L 1974, ch 578, § 2), and by placing on the agency the burden of proving the propriety of denying access to information (compare Public Officers Law, § 89, subd 4, par [b], with former § 88, subd 7, as enacted by L 1974, ch 578, §2).
The request now being reviewed is, thus, a separate and independent request made pursuant to the new law. As such, it is a “transaction” wholly distinct from the first request. Consequently, applying the transactional analysis approach to res judicata questions adopted in this State (see Matter of Reilly v Reid, 45 NY2d 24, 29; Restatement, Judgments 2d [Tent Draft No. 5], § 61), the parties are not bound by the determination made on petitioner’s first request.
Turning now to the merits of petitioner’s requests for access, we note that section 87 (subd 2, par [a]) exempts records that “are specifically exempted from disclosure by state * * * statute.” It is suggested that because subdivision 9 of sectipn 230 of the Public Health Law exempts proceedings and records of a committee on professional conduct “from disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided,” it does not exempt those proceedings and records from disclosure under the Freedom of Information Law. The rule of construction that specific mention of one thing impliedly excludes others is not, however, anything more than an aid to construction and “must not be utilized to defeat the purpose of an enactment or to override the manifest legislative intent” (Erie County v Whalen, 57 AD2d 281, 284, affd on App Div opn 44 NY2d 817; accord Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, 16, affd on reasoning of App Div 46 NY2d 1034; McKinney’s Cons Laws of NY, Book 1, Statutes, § 240, p 414). As is made clear by both the words “except as hereinafter provided” in subdivision 9 of section 230 of the Public Health Law and by the established rules of construction, all parts of section 230 are to be read together and interpreted with reference
The conclusion just stated follows from a reading of subdivision 9, paragraph (Z) of subdivision 10 and paragraph (a) of subdivision 11 together,
Petitioner argues that to the extent that the patient records he seeks are of his treatment of his patients and therefore known to him, the conclusion we reached runs contrary to logic and that, in any event, under section 89 (subd 4, par [b]) of the Public Officers Law it is respondents’ burden to show that the records sought are exempt under subdivision 2 of section 87, wherefore patients’
For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.
Order affirmed.
. On the res judicata point, three members of the court disagree with the transactional analysis set forth above, but concur in the result on the theory
. The opinion on which petitioner relies is that of the executive director of the committee. Whether the committee has delegated the advisory opinion function to the executive director is not discernible from the record.
. Matter of Sheehan v City of Binghamton (59 AD2d 808) is not to the contrary since the interpretations of the agency .and of the committee in that case were not in conflict.
. Petitioner argues that because respondents’ affirmative defense specifically pleaded subdivision 9 and made no similar reference to paragraph (Z) of subdivision 10 and paragraph (a) of subdivision 11, they cannot now rely on the latter subdivisions. The argument overlooks the first affirmative defense which pleaded full compliance with law, but more importantly overlooks the public policy for confidentiality contained in section 230, which is not waived by failure affirmatively to plead (see 3 Weinstein-Korn-Miller, NY Civ Prac, par 3018.18). Nor does the rule that a court may not rely on a ground not “invoked by the agency” (Matter of Barry v O’Connell, 303 NY 46, 50) aid petitioner in this respect for the records access officer’s denial relied upon “section 230” without limitation as to subdivision.
. In light of the underscored words it is clear that the Freedom of Information Law cannot be deemed to have “otherwise provided by law”, for so to hold would render the strong prohibitory language of the last sentence of paragraph (l) utterly meaningless and the result absurd (Matter of Sabot v Lavine, 42 NY2d 1068, 1069; Williams v Williams, 23 NY2d 592, 599; McKinney Statutes, op. cit., § 145).
. In view of our conclusion that section 230 is an exempting State statute within the meaning of section 87 (subd 2, par [a]) of the Public Officers Law, we need not consider whether the CPLE is such a statute, nor do we reach respondents’ arguments that the materials sought are in any event exempt under paragraph (b), clause (i) of paragraph (e) and paragraph (g) of that subdivision.